Citation Nr: 1340849 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 08-04 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left knee disorder, characterized as degenerative joint disease status post total left knee arthroplasty. 2. Entitlement to service connection for a low back disorder, characterized as degenerative arthritis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary-Caitlin Ray, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1956 to December 1959 and from May 1961 until October 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied service connection for a left knee disorder and denied a claim to reopen service connection for a low back disorder. In January 2012, the Board reopened the claim for service connection for a low back disorder and remanded the appeal for further development, specifically for a new VA examination to determine the etiology of the Veteran's left knee and low back disorders. The claim was readjudicated and a Supplement Statement of the Case was issued in November 2012. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that a left knee disorder is the result of a disease or injury in active duty service or a service-connected disability. 2. The preponderance of the evidence is against a finding that a low back disorder is the result of a disease or injury in active duty service or a service-connected disability. CONCLUSIONS OF LAW 1. A left knee disability was not incurred in or aggravated by active service or by a service-connected disability. 38 U.S.C.A. § § 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). 2. A low back disability was not incurred in or aggravated by active service or by a service-connected disability. 38 U.S.C.A. § § 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. § § 5103, 5103A; 38 C.F.R. § § 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any medical of lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principe, 18 Vet. App. 112 (2004); Quartuccio v. Principe, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated February 2006 of the criteria required for establishing service connection on direct and secondary bases, the evidence required in this regard, and his and VA's respective duties for obtaining such evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in January 2007. Nothing more was required. VA's duty to assist has also been satisfied. The Veteran's service treatment records are in the file as are records reflecting his treatment through VA. Private treatment records identified by the Veteran have been obtained, to the extent possible. No outstanding evidence has been identified that has not otherwise been obtained. The record indicates that the Veteran underwent VA examinations to evaluate his left knee and low back disorders in June 1998, December 2006, and November 2007. An addendum VA opinion was obtained in October 2012. Collectively, the examinations and opinions involved a review of the claims file, a thorough examination of the Veteran (examinations only), consideration of the Veteran's lay statements/history, and conclusions that were supported by sufficient rationale. Therefore, the Board finds that the opinions, taken together, are adequate to decide the left knee and low back claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board notes that the addendum opinion provided for the Veteran's left knee and low back claims were not provided by the original November 2007 examiner, as instructed by the Board's remand. However, that examiner was evidently not available, and the VA examiner fully reviewed the Veteran's claims file and medical records, including the physical examination section of the November 2007 VA examination, and based her opinion on such a review. In an August 2009 statement, the Veteran indicates that his overall condition has declined since the November 2007 VA examination. As the Veteran has already been diagnosed with current left knee and low back conditions, and the addendum opinion was requested in order to clarify the etiology of the Veteran's disorders, as opposed to their severity, there is no indication that any change in his physical condition since the November 2007 examination would alter the examiner's opinion. Accordingly, the Board finds that there has been substantial compliance with its remand and that another remand to obtain a new physical examination would not benefit the Veteran. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). All remand instructions issued by the Board have been substantially complied with and these matters are once again before the Board. As there is no indication that failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of these claims, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection The Veteran claims that he has left knee and low back disorders that are the result of his military service. He alternately contends that these disorders were caused or aggravated by his service-connected right leg and hip disabilities. When determining whether service connection is warranted, all theories of entitlement, direct, presumptive and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); arthritis, including degenerative joint disease, is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2013). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b) (2013); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorders to active duty. The Veteran himself does not contend that his disorders are related to his active service. Pertinent evidence includes a June 1998 VA examination, which attributed the Veteran's low back disorder to a musculoskeletal etiology. The examiner opined that it was unlikely that the Veteran's low back disorder was related to active service, given the passage of time between its onset and his retirement. At a November 2007 VA examination, the examiner opined that the Veteran's low back and left knee disorders were not caused by or as a result of his active service. He opined that the etiology of both was likely the normal aging process. Based on the competent lay and medical evidence, direct service connection is not warranted for the Veteran's claimed disorders. See 38 C.F.R. § 3.303(d) (2013). The Veteran has not asserted that his left knee and low back disorders began in service, nor do the service treatment records show such onset. Post-service evidence similarly does not reflect symptomatology related to any of the claimed disorders on appeal for many years after service discharge. The first indication of a low back disorder was not until May 1996, when the Veteran complained of a long history of low back pain. The private examiner diagnosed the Veteran with osteoarthritis of the lumbar spine. A diagnosis of degenerative joint disease has been carried since December 2006. The first indication of a left knee disorder was not until April 2003, where the Veteran complained of mild pain in the left knee with worsening symptoms. An X-ray performed at that time indicated narrowed medial joint space, and the examiner diagnosed the Veteran with degenerative joint disease of the left knee. He underwent a total left knee arthroplasty in June 2011. While not dispositive, the Board emphasizes the multi-year gap between discharge from active duty service in 1976 and the first post-service symptoms in 1996 and 2003, respectively. The Veteran does not necessarily argue that either disorder had its onset in-service. Further, while degenerative changes to the left knee and lumbar spine have been noted, neither of these disorders were manifest to a compensable level within one year of his separation from active duty. Service connection for these disorders is not warranted on a presumptive basis as a chronic disability. See 38 C.F.R. §§ 3.307, 3.309 (2013). Moreover, as the symptoms are not documented until many years after service, and the Veteran does not relate his low back pain or left knee symptomatology to service, continuity of symptomatology is not established. 38 C.F.R. § 3.303(b). Turning to secondary service connection, the Veteran's main contention, the Veteran has current diagnoses for his claimed disorders, as discussed above. He is also service connected for right knee arthritis, a fracture of the right tibia, status post right hip replacement due to osteoarthritis associated with residuals of fractured right hip, residuals of fractured right hip, and right leg length discrepancy associated with right tibia fracture, which the Veteran contends have caused or aggravated his left knee disorder. The first and second elements of Wallin are met. Although an in-service injury/service connected disability and current disability have been established, as noted above, this is not sufficient to warrant service connection. There still must be competent medical evidence of a nexus between the Veteran's reported in-service complaints of or service connected disabilities and his current left knee disability. See Wallin, 11 Vet. App. 507. Private treatment records included in the file indicate that the Veteran has been receiving treatment for his left knee and low back, respectively, since 2003 and 1996. The only private treatment records that could even be considered an opinion on the etiology of the Veteran's disorders are March 2007 and April 2007 letters from Dr.W.C. The March 2007 letter notes that it is conceivable that pathology in the right lower extremity can affect the left knee and lumbar spine, resulting in exacerbation of both disorders. A subsequent April 2007 letter opines that the Veteran's service-connected right knee disability has significantly contributed to the pathology in the lumbar spine due to alteration of gait secondary to the right knee disability. The Veteran's file also contains VA examination reports. The Veteran first underwent a VA examination to evaluate his left knee in December 2006. At that time, he complained of knee pain secondary to his service-connected right knee condition. The examiner reviewed the Veteran's claims file along with performing a physical examination and interview. He diagnosed the Veteran with early tricompartmental osteoarthritis of the left knee and concluded that it was secondary to a normal aging process. The examiner opined that the Veteran's left knee disorder was neither adjunct to nor aggravated by the service-connected conditions, but he failed to provide a rationale for this opinion. The Veteran was afforded another VA examination in November 2007. A review of the claims file, interview, and examination of the Veteran yielded a diagnosis early tricompartmental osteoarthritis of the left knee and multi-level lumbar degenerative disc disease. He opined that the disorders were neither adjunct to nor aggravated by his service-connected right knee or right hip. He rationalized that the degenerative changes in the left knee were early in nature, and therefore consistent with what was expected in a man of the Veteran's age. Rationale for the low back was based on a lack of specific pattern of injury and the normal aging process. After a January 2012 Board remand, an addendum medical opinion was procured from a VA physician in October 2012. The examiner reviewed the claims file and medical records, including Dr. W.C.'s opinions. She noted the Veteran's June 2011 total left knee arthroplasty. After a thorough summary of the Veteran's relevant medical history, she substantially agreed with the previous VA examiner and opined that the Veteran's left knee and low back disabilities were less likely as not caused by or aggravated by his service-connected right hip and right knee disabilities. She rationalized that the medical record was silent for evidence of left knee problems for twenty years following discharge and that the Veteran's use of a cane for his right sided conditions prevented strain on his lower extremities. She also addressed Dr. W.C.'s opinions in her rationale and pointed out that his treatment notes were silent as to the Veteran's gait. The Board notes that it is free to favor one medical opinion over another, so long as it provides an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Here, the Board finds the private opinions of Dr. W.C. to be less probative than the VA examiners' opinions. The March 2007 letter was purely speculative and thereby carried little probative value. Bloom v. West, 12 Vet. App. 185 (1999) (finding unpersuasive the unsupported physician's statement that the veteran's death "could" have been caused by his time as a prisoner of war). As his April 2007 letter, which was far more definitive, Dr. W.C. provided little rationale for his positive opinion. Though he suggests that alteration of gait secondary to the Veteran's service-connected right knee disorder significantly contributed to the lower back disorder, such a finding is not supported in the medical evidence of record. Many years of treatment notes from Dr. W.C. are silent for any mention of the Veteran having a disturbed gait. The VA 2012 examiner highlighted that there was only one finding (in 1996) of the Veteran having an antalgic gait, which she felt was likely a flare-up as opposed to a chronic state. There is also no explanation as to why, within a one month period, Dr. W.C.'s opinion as to the etiology of the Veteran's low back disorder was elevated from mere speculation to emphatic. The October 2012 VA opinion, by contrast, provides a much more detailed negative opinion. The examiner reviewed the Veteran's claims file, provided a lengthy review of the salient medical history and provided a detailed rationale acknowledging Dr. W.C.'s differing opinion. Although the November 2007 examiner did not address aggravation, his nexus opinion regarding causation includes a detailed rationale, and his examination report contains statements from the Veteran, a review of past medical history, and detailed treatment notes. The December 2006 examination of the Veteran's left knee by the same physician contains an equivalent level of detail. As such, Dr. W.C's March and April 2007 letters are less probative as nexus opinions than the VA opinions and are insufficient to grant service connection for the Veteran's left knee and low back disabilities. The only other evidence purporting to link the Veteran's current left knee and low back disorders to his military service and/or his service-connected disabilities consists of statements from the Veteran and his representative. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case, musculoskeletal disorders, fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons are not competent to diagnose cancer). Identifying and determining the etiology of a musculoskeletal disability necessitates testing and specialized knowledge to properly assess the disorder and its etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board readily acknowledges that the Veteran is competent to report symptoms of left knee and low back pain, but there is no indication that that he is competent to associate this pain with a particular etiology. He has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to medical causation. Nothing in the record indicates that the Veteran received any special training or acquired any medical expertise in evaluating orthopedic disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). This lay evidence does not constitute competent medical evidence and lacks probative value. Accordingly, the Board finds that the claims of entitlement to service connection for left knee and low back disorders must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 51078 (b) (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Entitlement to service connection for a left knee disorder, characterized as degenerative joint disease status post total left knee arthroplasty, is denied. Entitlement to service connection for a low back disorder, characterized as degenerative joint disease, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs